A stinker of a legal case: Law firm sues burger joint over cooking smells

By Amanda Becker
Monday, October 11, 2010;
14

When Rogue States entered D.C.'s crowded field of hamburger joints last February, it didn't quite count on the reception it would receive.

In no time, staff at the powerful Steptoe & Johnson law firm next door started complaining about the smell. And they didn't stop there. Steptoe soon contacted the Boston Properties affiliate that manages the firm's offices on Connecticut Avenue. It called Mayor Adrian M. Fenty's office and that of D.C. Council member Jack Evans (D-Ward 2), and rang up the city's fire, health and consumer affairs departments, the latter of which issued one violation.

Not satisfied with the steps taken by Rogue States and its landlord, Steptoe then filed suit.

Last week, the case played out in D.C. Superior Court, with Judge John M. Mott slated to rule Tuesday, Oct. 12.

Over three days of trial testimony, Steptoe employees described grilling fumes that left them with watery and itchy eyes, nausea and debilitating headaches. The odor was so pervasive that a top rainmaker threatened to leave the firm if his secretary's complaints were not resolved.

Rogue States attorney Gary C. Adler, of Roetzel & Andress, said the restaurant, from the moment it became aware of the complaints, had been in "constant communication" with its property manager, who loaned owner Raynold Mendizabal thousands of dollars to upgrade the restaurant's air-cleaning equipment.

The restaurant, though, also produced witnesses who cast doubt on the source of the smell, suggesting it could come from another nearby restaurant, Moby Dick's House of Kabob, since the complaints persisted after the new air-cleaning equipment had been installed.

Much of the trial testimony last week centered around a contentious tour of both Rogue States and Steptoe that was arranged on Sept. 8, when specialists were called in by both sides to evaluate whether cooking smells were indeed wafting into the law firm's offices and whether the source of such fumes was in fact Rogue States.

The specialist who serviced the new Smog-Hog exhaust system at the restaurant, Nelson Dilg, testified that during his tour "a blind man" could see the fumes were coming from a vent that connected to the House of Kabob.

Dilg said his effort to determine the true source of the odor was undercut by the animosity of the meeting at Steptoe, with those present refusing to answer his questions unless they were deposed.

I didn't know there was "blood in the water," Dilg testified.

Next up, Rogue States called Harvard-trained smell expert David L. MacIntosh to the stand, who said he could not conclusively determine the origin of the smell given the available information. Perhaps Steptoe could bring in a team of "calibrated noses" to determine the true level of odor, he suggested.

A Steptoe expert disagreed, saying to his nose, the source was clear. The noticeable smell in Steptoe's conference rooms was the "distinct" fume of "grease or chemicals" coming from the burger shop and the kabob odor was "less offensive," testified Marvin Davis, head of the civil engineering firm Marvin E. Davis & Associates.

During closing arguments, Adler painted the lawsuit as a "crusade" against Rogue States waged by a powerful law firm that has grown accustomed to getting its way, asking Mott to "think about what kind of havoc it would wreak on the community" if you could smell an odor and without scientific proof force a restaurant to close down. A smell now and then? "That's just part of life in the big city," Adler said.

"The theory that Steptoe is this litigation machine that can't stop until it gets its way ... is preposterous," countered Pillsbury litigator Deborah B. Baum, who was representing Steptoe. "People are getting sick and leaving work early -- it's just not fair."

Steptoe is seeking to force the restaurant at 1300 Connecticut Ave. NW to cease grilling until the smell is taken care of, which the firm contends can be done by relocating the exhaust system from a second-story roof to the top of the 10-story building for better ventilation.